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Weekly Update Volume 34, Issue 35

The U.S. Supreme Court adopted all of a Special Master's recommendations in a dispute between Colorado and Kansas concerning the division of waters in the upper Arkansas River. The Special Master's First Report found that Colorado unlawfully depleted the river in violation of the Arkansas River Compact, and its Second and Third Reports set forth proposed remedies. At issue here is Kansas' exceptions to the Master's Fourth Report, which resolves the remaining issues. The Court overruled all of Kansas' exceptions. The Court denied Kansas' request to appoint a River Master to decide various technical disputes related to decree enforcement. It also overruled Kansas' exceptions to the Special Master's prejudgment interest calculation, its recommendation that the computer model used to determine Colorado's future compact compliance be used with a 10-year measurement period, and its recommendation that the final amounts of water replacement plan credits to be applied toward Colorado's compact obligations be determined by the Colorado Water Court and appeals therefrom. The Court also overruled Kansas' exceptions to the Master's finding that Colorado complied with the compact between 1997 and 1999, and its refusal to make recommendations on 15 disputed issues. Breyer, J., delivered the opinion of the Court, in which Rehnquist, C.J., and O'Connor, Scalia, Kennedy, Souter, and Ginsburg, JJ., joined and in which Stevens and Thomas, JJ., joined expect for Part II. Thomas, J., filed an opinion concurring in part and concurring in the judgment. Stevens, J., filed an opinion concurring in part and dissenting in part. Kansas v. Colorado, No. 105, 34 ELR 20151 (U.S. Dec. 7, 2004) (28 pp.).

CWA, WETLANDS, JURISDICTION:

The Sixth Circuit upheld the U.S. Army Corps of Engineers' denial of developers' application for a construction permit. Because the wetlands on the property are separated from a tributary of "waters of the United States" only by a man-made berm or barrier, they are considered "adjacent wetlands" under CWA regulations. As such, the wetlands at issue in this case fall within the jurisdiction of the Corps for purposes of the CWA. In addition, the Corps provided a rational basis for its decision to deny the permit application.Carabell v. United States Army Corps of Engineers, No. 03-1700, 34 ELR 20147 (6th Cir. Dec. 3, 2004) (6 pp.).

NEPA, RADIOFREQUENCY RADIATION:

The D.C. Circuit upheld the Federal Communication Commission's (FCC's) refusal to undertake rulemaking tightening the restrictions governing the nonthermal effects of radiofrequency radiation. The FCC's decision not to initiate an inquiry neither violated NEPA nor was otherwise an abuse of discretion. The FCC's reliance on other government agencies and non-governmental expert organizations with specific expertise on the health effects of radiofrequency radiation is not an improper delegation of its NEPA duties. And studies on the nonthermal effects of radiofrequency radiation are merely tentative and support the FCC's position of "watchful waiting." EMR Network v. Federal Communications Commission, No. 03-1336, 34 ELR 20148 (D.C. Cir. Dec. 7, 2004) (8 pp.).

CWA, NPDES PROGRAM, STORM SEWER PERMITS:

A California appellate court upheld a comprehensive municipal storm sewer permit governing 19 local public entities. A building association argued that water quality standards provisions in the permit require strict compliance with state water quality standards beyond what is "practicable" and therefore violate federal law. Regional water boards, however, have the authority to include a permit provision requiring compliance with state water quality standards. Congress intended CWA §402(p)(3)(B)(iii) to provide regulatory agencies with authority to impose standards stricter than the federal "maximum extent practicable" standard, and this finding is consistent with interpretations by EPA and the Ninth Circuit. And the association's argument that the standards are impossible to satisfy are neither factually nor legally supported. Buildings Industry Ass'n of San Diego County v. State Water Resources Control Board, No. D042385, 34 ELR 20149 (Cal. App. 4th Dist. Dec. 7, 2004) (42 pp.).

PROPERTY LAW, LANDFILL, IMPROVEMENT:

A California appellate court held that a landfill is an "improvement" within the meaning of the 10-year statute of repose provided by the California Code of Civil Procedure §337.15. The case arose after the current owners of the landfill who turned it into a nursery noticed severe subsidence on the property. In 2000, the owners filed a claim against a county that originally owned the landfill alleging inverse condemnation, nuisance, negligence, trespass, and recovery of toxic waste response costs. Contrary to the current owners' contention, the county's construction and operation of the landfill was an improvement under §337.15. While the county's primary goal may not have been to obtain a profit from eventual sale of the landfill, in filling it, covering it and selling it, the county was engaged in making the real property suitable for further use by others. Thus, because operation of the landfill ceased in 1967 and the county sold it in 1969, the current owners' complaint is time barred under the statute. Gaggero v. County of San Diego, No. D043012, 34 LER 20145 (Cal. App. 4th Dist. Dec. 1, 2004) (13 pp.).

A California appellate court reversed a trial court decision and granted a neigborhood group's petition seeking the preparation of an EIR under CEQA for a residential project. The trial court erred in ruling that the issues tendered by the group were immune from environmental review in an EIR. Substantial evidence exists to support a fair argument that the project may have a significant effect on the environment as to city land use policies and regulations and aesthetic impacts. Pocket Protectors v. City of Sacramento, No. C046247, 34 ELR 20150 (Cal. App. 3d Dist. Dec. 7, 2004) (58 pp.).

NEW YORK STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA), ANNEXATION:

New York's highest court held that SEQRA review is required before a municipality adopts a resolution approving the annexation of real property from an adjacent municipality, but the extent of the EA is dependent on the specific development plans associated with the transfer of territory. SEQRA promotes, rather than undermines, the public interest purposes of article 17 of the New York General Municipal Law. Therefore, General Municipal Law §718(5) does not exempt the annexation process from SEQRA review. But because the annexation proposal in this case lacks a specific project plan that has been officially submitted or a rezoning proposal that changes the use for which the property may be utilized, the EA will necessarily be limited to the annexation itself and its effects. Where, on the other hand, an annexation is premised upon a formal project plan, environmental review will be more extensive and must address the specific use of the property in evaluating the related environmental effects. City Council of Watervliet v. Town Board of Colonie, No. 148, 34 ELR 20146 (N.Y. Dec. 2, 2004) (14 pp.).

NMFS closed the U.S. longline fishery for bigeye tuna in the Tuna Conventions Act Area for the remainder of 2004 in order to prevent overfishing of bigeye tuna in the eastern tropical Pacific Ocean in accordance with recommendations by the Inter-American Tropical Tuna Commission that the Department of State approved under the Tuna Conventions Act. 69 FR 71732 (12/10/04).

NMFS proposed to designate 11,668 miles of riverine habitat and 947 miles of bay or estuarine habitat in California for two evolutionary significant units (ESUs) of chinook salmon and five ESUs of O.mykiss; however, NMFS is also considering excluding many of those areas from the final designation based on existing land management plans and policies, voluntary conservation efforts, and other factors that could significantly reduce the area of the final designations. 69 FR 72017 (12/10/04).

NMFS authorized BP Exploration, Inc. to take marine mammals incidental to the production of offshore oil and gas at the Northstar development in the Beaufort Sea of Alaska. 69 FR 71781 (12/10/04).

HAZARDOUS & SOLID WASTES:

EPA proposed to enter into an administrative settlement under CERCLA concerning the Bayonne Barrel and Drum Superfund site in Newark, New Jersey, wherein 37 settling parties must make three payments to resolve their liability for EPA response costs incurred through January 31, 2003; the first payment of $500,000 will be due within 30 days of the agreement's effective date, the second payment of $300,000 will be due by January 31, 2005, and the final payment of $2,186,500 (subject to reduction pursuant to EPA's orphan reduction policy) will be due within 540 days of the agreement's effective date. 69 FR 71408 (12/9/04).

EPA proposed to revise the codification of Idaho's approved state hazardous waste management program under RCRA. 69 FR 71391 (12/9/04).

EPA authorized Tennessee's application for final authorization of changes to its hazardous waste program under RCRA after determining the changes satisfy all requirements needed to qualify for final authorization. 69 FR 70902 (12/8/04).

NATURAL RESOURCES:

The Bureau of Reclamation announced that the discount rate for federal water resources planning in fiscal year 2005 is 5.375; this change was made pursuant to the Water Resources Planning Act of 1965 and the Water Resources Development Act of 1974, which require an annual determination of the discount rate to be used to convert future monetary values to present values for federal water resources planning purposes. 69 FR 71425(12/9/04).

The Forest Service and FWS proposed a rule that edits and clarifies the jurisdiction of the Federal Subsistence Management Program so that several saltwater embayments in the National Wildlife Refuge boundaries that were not withdrawn prior to statehood are excluded in coastal areas of southwestern Alaska. 69 FR 70944 (12/8/04).

BLM announced a planning effort that will precede the preparation of a bay resource management plan for approximately 3.6 million acres of BLM-administered land in the Bristol and Goodnews Bay areas of Alaska, as directed by FLPMA and NEPA; BLM also called for coal resource information and identification of areas where interest exists in future leasing and development of federal coal. 69 FR 70469 (12/6/04).

SMCRA:

OSM superseded portions of Pennsylvania's Bituminous Mine Subsidence and Land Conservation Act (BMSLCA) that are inconsistent with the requirements of SMCRA. 69 FR 71551 (12/9/04).

OSM approved a proposed amendment to Pennsylvania's regulatory program under SMCRA concerning bonding and repair or compensation for damage to certain structures caused by subsidence due to underground mining operations and concerning replacement or restoration of water supplies affected by subsidence due to underground mining operations; the amendment also removes 47 amendments to the state's program that had been required by OSM in December of 2001 when the office reviewed changes the state made to the BMSLCA and associated regulations to make the program authorized by that act consistent with federal regulations and SMCRA. 69 FR 71527 (12/9/04).

TOXIC SUBSTANCES:

The National Toxicology Program's Center for the Evaluation of Risks to Human Production planned to convene an expert panel, consisting of 8 to 12 scientists, to analyze scientific evidence regarding the potential reproductive and/or developmental toxicity associated with exposure to styrene. 69 FR 71068 (12/8/04).

EPA issued a rule under TSCA requiring certain manufacturers and importers of 3 pyridanamine chemicals and 20 tungsten compounds to submit a one-time report concerning general production/important volume, end use, and exposure-related information to EPA; the TSCA §4(e) Priority Testing List was recently amended to include the 23 chemicals affected by this rule. 69 FR 70552 (12/7/04).

WATER QUALITY:

EPA announced the availability of and requested comment on administrative record files for nine TMDLs and associated calculations prepared by EPA Region 6 for waters listed in under CWA §303(d) for the Atchafalaya River, Barataria Bay, Calcasieu River, Lake Pontchartrain, Mermentau River, Mississippi River, Sabine River, Terrebonne, and Vermilion-Teche River Basins of Louisiana; the TMDLs were completed in response to a court order in the lawsuit Sierra Club v. Clifford, No. 96-0527, (E.D. La.). 69 FR 71409 (12/9/04).

EPA proposed to reissue two NPDES permits for discharges from confined animal feeding operations (CAFOs) in New Mexico and Oklahoma and Indian lands in those states; all the requirements of the permits, which were effective March 10, 1993, through March 10, 1998, remain in place in the new proposed permits, and the new permits also contain additional requirements specified in revised CAFO regulations at 40 CFR pts. 122 and 412, and published in the Federal Register at 68 FR 7175 on February 12, 2003. 69 FR 70684 (12/7/04).

WILDLIFE:

FWS may once again revoke incidental take permits under certain circumstances after the authority to do so had been taken away when the U.S. District Court of the District of Columbia invalidated these regulations by proving that FWS adopted these regulations without adequately complying with public notice-and-comment procedures required by the APA. 69 FR 71731 (12/10/04).

FWS requested comment on an application by Shaw Mira Loma LLC for a one-year incidental take permit allowing the company to take the federally endangered Delhi Sands flower-loving fly during the construction of commercial and industrial facilities within a 5.02-acre parcel in the city of Mira Loma, California, and also requested comment on FWS' preliminary determination that the company's plan to establish a conservation program (the Shaw Mira Loma LLC Low Effect Habitat Conservation Plan) to mitigate for the impact of the construction activities on the species qualifies for a categorical exclusion under NEPA. 69 FR 71422 (12/9/04).

FWS announced the availability of a draft economic analysis for the proposed designation of critical habitat for the Lane Mountain milk-vetch under the ESA. 69 FR 70972 (12/8/04).

FWS proposed to designate 9,403 acres of critical habitat with essential features in Los Angeles, Orange, Riverside, San Bernardino, and San Diego for the federally threatened thread-leaved brodiaea. 69 FR 71319(12/8/04).

FWS announced a five-year review of the Topeka shiner, a species of fish native to streams of the central plains, to ensure that the listing classification of the species is accurate. 69 FR 71072 (12/8/04).

FWS announced 12-month findings on petitions to list seven foreign swallowtail butterflies under the ESA, determining that listing is not warranted for the Oaxacan swallowtail and the southern-taled birdwing and that listing is warranted for Harris' mimic swallowtail, the Jamaican kite swallowtail, the Fluminese swallowtail, Hahnel's Amazonian swallowtail, and the Kaiser-I-Hind swallowtail, but currently is precluded by higher-priority actions. 69 FR 70580 (12/7/04).

FWS denied a permit application filed in April 2004 by a resident of Newcastle, Wyoming, requesting permission to import for personal use a polar bear sport hunted from the Baffin Bay polar population in Canada. 69 FR 70705(12/7/04).

FWS made Louisville, Kentucky; Memphis, Tennessee; and Houston, Texas, designated international ports under ESA §9(f), allowing the direct importation and exportation of wildlife and wildlife products through their ports. 69 FR 70379 (12/6/04).

FWS announced the emergency re-establishment of the temporary Pine Island-Estero Bay Manatee Refuge in Florida, following the termination of the prior emergency establishment order for the site on December 6. 69 FR 70382 (12/6/04).

DOJ NOTICES OF SETTLEMENT:

United States v. AK Steel Corp., No. 04-1833 (W.D. Penn. Dec. 2, 2004). A settling CAA, CWA, and RCRA defendant must pay a civil penalty of $300,000 and perform three supplemental environmental projects of nitrogen oxide reduction, chlorofluorocarbon unit conversions, and a refrigerant recycling program giving a total cost of $1.2 million in Butler County, Pennsylvania. 69 FR 71847 (12/10/04).

United States v. Global Cos., No. 04-CV-12495-DPW (D. Mass. Nov. 29, 2004). A settling CAA defendant must pay a civil penalty of $500,000 and perform a three-year compliance assurance program to ensure there will be future compliance with the requirements for importing and blending reformulated and conventional gasoline.69 FR 71848 (12/10/04).

United States v. Motiva Enterprises LLC, No. H-01-0978 (S.D. Tex. Dec. 2, 2004). A settling CAA defendant must achieve a nitrogen oxide reduction of 3,661 tons per year by the end of this year; the defendant has agreed to make up for the 7 ton per year shortfall by no later than March 31, 2005, and to achieve a further reduction of 62 tons per year by that date. 69 FR 71848 (12/10/04).

S. 434 (National Forest System land), which will authorize the Secretary of Agriculture to sell or exchange all or part of certain parcels of National Forest System land in the state of Idaho and use the proceeds derived from the sale or exchange for National Forest System, was signed by the President. Pub. L. No. 108-436, 150 Cong. Rec. D1124 (daily ed. Dec. 7, 2004).

S. 1241 (historic site), which will establish the Kate Mullany National Historic Site in the state of New York, was signed by the President. Pub. L. No. 108-438, 150 Cong. Rec. D1124 (daily ed. Dec. 7, 2004).

H.R. 1113 (land exchange), which will authorize an exchange of land at Fort Frederica National Monument, was signed by the President. Pub. L. No. 108-417, 150 Cong. Rec. D1116 (daily ed. Dec. 6, 2004).

H.R. 1446 (California Missions Foundation), which will support the efforts of the California Missions Foundation to restore and repair the Spanish colonial and mission-era missions in the state of California and to preserve the artworks and artifacts of these missions, was signed by the President. Pub. L. No. 108-420, 150 Cong. Rec. D1116 (daily ed. Dec. 6, 2004).

H.R. 1630 (boundary adjustment), which will revise the boundary of the Petrified Forest National Park in the state of Arizona, was signed by the President. Pub. L. No. 108-430, 150 Cong. Rec. D1124 (daily ed. Dec. 7, 2004).

H.R. 1964 (conservation), which will assist the states of Connecticut, New Jersey, New York, and Pennsylvania in conserving priority lands and natural resources in the Highlands region, was signed by the President. Pub. L. No. 108-421, 150 Cong. Rec. D1116 (daily ed. Dec. 6, 2004).

H.R. 4593 (wilderness areas), which will establish wilderness areas, promote conservation, improve public land, and provide for the high quality development in Lincoln County, Nevada, was signed by the President. Pub. L. No. 108-424, 150 Cong. Rec. D1116 (daily ed. Dec. 6, 2004).

H.R. 4794 (Tijuana River Valley Estuary and Beach Sewage Cleanup Act), which will amend the Tijuana River Valley Estuary and Beach Sewage Cleanup Act of 2000 to extend the authorization of appropriations, was signed by the President. Pub. L. No. 108-425, 150 Cong. Rec. D1116 (daily ed. Dec. 6, 2004).

CHAMBER ACTION:

H.R. 2619 (Kilauea Point National Wildlife Refuge Expansion Act of 2004), which would provide for the expansion of Kilauea Point National Wildlife Refuge, was passed by the Senate. 150 Cong. Rec. S12019 (daily ed. Dec. 8, 2004).

The European Commission (EC) has issued a Consultation Document assessing the actions to be undertaken as part of the Thematic Strategy on the Sustainable Use of Natural Resources. This consultation will build on and focus the results of the stakeholder consultations following the EC's 2003 Communication, "Towards a thematic strategy on the sustainable use of natural resource." It seeks to elicit relevant information and opinions from stakeholders on particular measures being considered for inclusion in the final strategy. The information submitted will feed into the Extended Impact Assessment that is currently being prepared by EC departments and will guide the final strategy, which should be adopted in summer 2005. The consultation runs from December 6, 2004, until January 30, 2005. See http://europa.eu.int/comm/environment/natres/form.htm

CLIMATE CHANGE:

The annual United Nations climate change conference began on December 6, 2004, in Argentina. At the conference, which is taking place against the background of the recent ratification of the Kyoto Protocol by Russia, the European Union will present its Emissions Trading System due to be launched on January 1, 2005. See http://europa.eu.int/rapid/pressReleasesAction.

WILDLIFE:

The EC has proposed requiring European fishing fleets to make reductions in their catch of up to 60% for herring, 34% for cod, and 27% for mackerel in an attempt to protect depleted fish stocks. The EC suggested the closure of cod grounds in Kattegat and Skagerrak in the Baltic, in the eastern English Channel, in the North Sea, and in the Irish Sea. Other species with proposed cuts in certain fishing grounds are saithe, plaice, skate, common sole, whiting, North Sea sandeel, and Norway lobster. See http://news.bbc.co.uk/2/hi/science/nature/4078481.stm